*1 157 not, to “deserve” Champagne, under me that Ms. Recodo did at 855 at her child permanently. lose omitted). (footnote do not believe certainly I dispositional grounds, to regard With best the child’s circumstances
that “under no reasonable [will] tie.” Id. at by sustaining parental be served interest severing parental not many There are reasons for P.2d at 858. does that “there Champagne in recognized tie in this case. We A child on a give up parent. must society come a time when at P.2d indefinitely.” Id. at be kept suspense cannot this case caused in much of the my “suspense” 857. In opinion, to a more assistance giving itself in not was caused State trying circumstances. extremely under living woman who was on” this mother. “give up time had not come to difficult the sad observation The trial court made “[t]he may day Recodo the realization that one of this case is aspect progress make the is a priority determine that Michael recognized trial court with Michael.” The reunify necessary make the “progress Recodo was going that Ms. possibility view, my In with its mother. this child back necessary” place premature parental rights of this mother’s termination termination order. I would reverse the unseemly. GREENE, and ARTHUR
TRAVERS ARTHUR LEONARD NEVADA, Appellants, WINFREY, OF v. THE STATE Respondent.
No. 27988 January P.2d 54 *2 [Rehearing denied May 1998] Schieck, David M. Vegas, Las for Greene. Appellant Reed, Nathaniel J. Vegas, Reed and Norman Las for Appellant Winfrey. General, Frankie Del Papa, Attorney City; Sue Carson Stewart Bell,
L. Attorney, Tufteland, District and James Chief Deputy District Attorney, County, Respondent. Clark
OPINION Court, Shearing, By the J.: appellants early morning September In the hours drove to Winfrey and Leonard Arthur Travers Arthur Greene Camaro, armed with stolen Sunrise Mountain in a stolen blue intended to handgun. They M-14 rifle and a weapons, an assault make rifle how a hole it would experiment big with the to see reaching top when the of Sunrise something. Upon fired at Mountain, with Deborah Volkswagen a blue they spotted powder drove Payton Winfrey and beside it. Christopher sleeping Farris shining the Volkswagen stopped, the Camaro to the up rifle, Armed with the assault headlights Payton. on Farris and in the Payton Greene exited the Camaro and shot immediately Farris, rifle but the assault attempted head. Greene then to shoot rifle, began tried to the Farris jammed. unjam While Greene Meanwhile, life, for her don’t do this.” pleading crying “please car, the from the exited Winfrey, monitoring who was situation vehicle, trigger. at Farris and the pointed handgun pulled However, dis- also malfunctioned and no bullet handgun charged. At this Farris continued to with Greene point, plead thereafter, Winfrey Shortly not to kill her. Greene succeeded rifle, the assault at her head and shot her in fixing pointed it neck, saying up, “shut bitch.”
Heather Barker while seated in killings witnessed these earlier that Winfrey’s apartment Camaro. Barker had been at ride evening, Winfrey give and Greene and had her a promised “oh, fired, Winfrey, home. After the first shot was Barker said to God, also my somebody, go did he shoot I want to home.” Barker this, a do could saying, you heard female voice don’t “please car, you take could take don’t do this.” anything, my just please until Winfrey’s Barker was a friend of but had not met Greene evening. After the back into the killings, Winfrey got Green and about how it they driving away, laughed Camaro. As were Greene looked He also eyeballs Payton’s when the out of head. popped out of Farris’s derisively talked about how the blood bubbled neck when he her. shot Mountain, leaving Winfrey
After Sunrise drove to Barker’s house and Greene cleaned the assault rifle in her bathroom. they three then went where had met Winfrey’s apartment car, Winfrey earlier that Greene left in the went to his evening. up bedroom to and Barker walked home. sleep, roommate, Souza, noticed that day, Winfrey’s The next Phil When the bothering him. something acted as if Winfrey killed being two story people news about eleven o’clock showed Mountain, began banging Winfrey upset became on Sunrise *6 later, 45 minutes Greene the ground. Approximately his head on the “they found say, overheard Greene arrived and Souza bodies,” made no state- through yet.” Winfrey are not and “we day The Souza following what had regarding happened. ment him what he had on the street and told policeman a approached observed. both Greene and investigation led to the of
This information murders of Farris and and their arrest for the Winfrey subsequent 25, 1994, each Winfrey and were On Greene Payton. September conspiracy count of of Information with: one charged way murder; deadly with use of a two counts of murder commit vehicle. one count of of a stolen weapon; possession and both against the death penalty The State filed notice to seek defendants, (1) the murder circumstances: alleging following the effect an a lawful arrest or to prevent was committed to avoid or 200.033(5); (2) murder was com NRS the custody, from escape apparent at random and without persons mitted one or more upon has, motive, immediate 200.033(9); (3) the in the NRS defendant murder in than one offense of been convicted of more proceeding, 200.033(12).1 NRS degree, the first or second and with Greene jointly conducted jury The first trial was However, Bruton to incurable due Winfrey as co-defendants. Thereafter, issues, a mistrial to Greene. granted the district court alone, and a second Winfrey against the trial continued jury first and Both Greene Greene. against trial commenced separate jury charges. of all were convicted Winfrey hearings. separate penalty each had Winfrey Greene and for both Greene, following aggravators found the jury the Against persons one or more committed (1) upon the murder was killings: (2) motive, 200.033(9); and NRS apparent at and without random has, been convicted the immediate proceeding, the defendant in NRS degree, the first murder in than one offense of of more the Greene, reflect that verdicts 200.033(12). special the Against (1) youth circumstances: mitigating jury following also found the crime; (2) any other at the time of the of the defendant deter- jury case. The to exist in this circumstances mitigating and conse- mitigators outweighed aggravators mined that the aggravating 1Effective the “more than one offense” October 200.033(10) 200.033(12). to NRS circumstance was renumbered from NRS 200.033(12). statutory will be to NRS All further references to section Greene. Greene against a death verdict returned quently counts, years conspir- six for death for both murder sentenced to murder, of years ten and restitution a consecutive acy to commit $1,000 vehicle. for stolen possession factor aggravating found Against Winfrey, jury had, in the immediate be that the defendant Payton’s murder to murder in than one offense of convicted of more been proceeding, 200.033(12). jury found under NRS degree the first murder was murder to be that the factor in Farris’s aggravating without at random and persons one or more upon committed However, 200.033(9). did jury under NRS apparent motive Instead, Winfrey was Winfrey. against not return a death verdict possibil- without the consecutive life sentences sentenced to two murder, years conspiracy six ity of for both counts parole murder, restitution of years ten to commit a consecutive $1,000 of a Greene for severally possession with jointly stolen vehicle. from the appeal notices of Winfrey timely
Greene and filed *7 of conviction.2 judgments appeal
Greene’s
Improper testimony Greene asserts that the elicited prosecutor improperly testi- Souza, mony from witness Phil appellant Winfrey’s roommate at murders, the time of the which prior constituted bad act evidence not falling any 48.045(2). under enumerated in exception NRS 48.045(2)
NRS provides: crimes, Evidence of other or wrongs acts is not admissible to prove the character person of a in order to show that he acted however, conformity therewith. may, It be admissible for motive, intent, other purposes, such as proof opportunity, preparation, plan, knowledge, identity or absence of mistake or accident.
Although may evidence be admissible under the cited exceptions 48.045(2), in NRS the determination whether to admit or exclude evidence of separate and criminal acts rests within independent 2By way granted by prior argument, appellant of a motion court to oral incorporated arguments originally Greene appeal into his several raised in brief; appellant Winfrey’s 200.033(9) (12) namely, whether NRS are prove unconstitutional and whether sufficient evidence existed to that the killing apparent of victim Farris was at random and without motive. These by are opinion issues addressed and resolved the court in the of this section pertaining appellant Greene. court, the sound discretion of the it duty trial and is court’s strike a balance between probative prejudicial value and its dan- State, Petrocelli v. gers. 101 Nev. 692 P.2d (1985).
We conclude that does not testimony Souza’s constitute bad act evidence Greene contends. The improper prior prose- as testimony cutor’s elicitation of Souza’s that Greene was not finished “killing” conspir- admissible as evidence of Greene’s murder, acy with Winfrey charges against to commit one of the reason, him. If this evidence improper any Greene therefore, received the benefit of a there jury admonishment is no error.
Greene testimony by also contends that other Souza was given improper witness intimidation evidence because “the prosecutor obviously intended to to the that Greene was the imply jury source of threat to Souza’s Greene asserts that there parents.” is no evidence to corroborate such an implication. prosecutor’s
A references to or of witness intimi- implications by dation a defendant is reversible error unless the prosecutor produces also substantial credible evidence that the defendant was Lay source of the intimidation. 1193-94, 450-51
Greene’s
that his
were
argument
testimony
parents
Souza’s
by
“scared”
as evidence of witness intimidation Greene
qualifies
worst,
single,
is tenuous. At
this constitutes a
indirect reference
Moreover,
by
implica-
witness intimidation Greene.
there is no
tion
testify
that Souza was reluctant to
because of fear of retalia-
tion Greene. After
one
listening
testimony,
might
to Souza’s
even reach the
are
parents
conclusion that Souza’s
scared of
*8
Souza
even if
Accordingly,
quali-
himself.
we conclude that
evidence, it
improper
fies as
witness intimidation
is harmless
Id.,
beyond a reasonable doubt.
166
argues that the evidence is admissible NRS pursuant to 50.085(3).3 case, whether she
In the unrelated Barker had been asked prior which any giving testimony, had taken before to she drugs The no. consented to a urine test. subsequently answered She of that revealed some level of controlled positive results test in her court in the case system. prior substance district results, and the and amount of controlled type sealed Barker’s test case, system substance in her never revealed. In the instant was testimony her in that prior Greene wanted to Barker with impeach question case. The district court ruled that defense counsel could testimony, Barker it related her current drug about her use as to testimony but not to her in the case. prior The decision to admit evidence is within the sound discretion State, 564, 567, v. Nev. P.2d 801 Daly court. 99 665 State, 680, 683, (1983). P.2d In Rembert v. 104 Nev. 766 (1988), to 892 this court held that it was error to allow State with evi- attempt impeach credibility a defendant’s extrinsic State, dence to a matter. v. relating collateral Accord Rowbottom 472, 485, Further, P.2d 942 “[e]ven found, relevancy may where . . . be fair trial demands that the where, evidence by prejudi- not be admitted in cases virtue of its nature, cial likely it is more to distract from the essential issue than bear it.” v. Nev. upon Nystedt, State 41,54, 534, (1963) (quoting Nester (1959)). case, that, We conclude under the circumstances of this any district court properly testimony regarding determined actually whether Heather Barker lied about or had using drugs drugs system in her at the unrelated trial collateral. It prior was sufficient that permitted question defense counsel was Barker concerning drug night her use on the of the murders and prior testifying in the instant case. The district court did not abuse impeach- its discretion defense counsel from prohibiting ing Barker a collateral matter. regarding 50.085(3) provides:
3NRS witness, Specific purpose instances of the conduct of a for the crime, attacking credibility, supporting or his other than conviction of however, may proved They may, not be extrinsic evidence. if truthfulness, inquired relevant to be into ... on of a cross-examination opinion who witness testifies to an of his character for truthfulness or untruthfulness, general subject upon to the relevant evi- limitations dence.
167 photographs victim Admission of admitting by erred court the district that contends Greene than prejudicial more were they because victim photographs had photographs the same that because Greene asserts probative. trial, had advance court the district Winfrey’s ill at juror made a therefore, it nature inflammatory photographs’ of the notice introduction. their permitted not have should 8] [Headnote discretion the sound within is of admissibility photographs in the be disturbed will not court, decision whose the trial State, 110 Paine discretion. of that a clear abuse absence of denied, S. 115 cert. 1025, (1994), 617, P.2d to admit discretion court’s within the (1995). It is Ct. 1405 any prejudicial outweighs value probative where the photographs Ybarra v. jury. on the have might photographs effect the denied, 470 cert. (1984), P.2d
U.S. 1009 the district that we conclude photographs, reviewing the After three them. The admitting discretion did not abuse its court are appeal on record with this court submitted photographs crime of the aerial views are photographs Two far from graphic. from them shows bodies two dead scene; of the only photo aof a picture is photograph The third distance. considerable Farris, alive. she was when woman, Deborah young presumably there than prejudicial more probative are photographs These nowas error. homicide regarding
Jury instructions
homicide
regarding
instructions
jury
contends that
Greene
deliberate
premeditated,
terms
because
were improper
these
that
asserts
Greene
the jury.
were not clarified
willful
elements
and distinct
“necessary
constitute
three terms
‘and’
conjunctive
of the
use
Murder. The
Degree
First
crime of
one
and each
separate
are
elements
that the
crystallizes
degree.”
the first
murder in
a verdict
support
required
sepa-
defined
not
were
terms
these
claims
because
Greene
murder
degree
and second
between first
distinction
rately, the
to the jury.
not
clear
not
together,
be read
must
relating to intent
Jury instructions
be
not
may
jury
to the
instruction
single
disconnectedly, and a
isolation,
judged
but must be viewed in context of the overall
*10
State,
262,
charge. Rose v.
86 Nev.
State,
700,
(1992),
In Powell v.
In the instant we conclude that the jury instructions regarding comport homicide with the law. The for requirements outlined, first-degree murder were clearly and the distinction Thus, between second-degree first- and murder explicit. Greene’s contention that the were jury improper instructions lacks merit.
Prosecutorial during opening misconduct the state’s state- ment guilt at the phase
Greene contends that the prosecutor committed misconduct during opening statement by making following remarks: going Prior to to Winfrey’s Leonard and after the apartment of killing young this this defendant while in couple laughed laughed Camaro. He about how the man when looked killed, eye his popped out after he was shot and and he laughed about how Deborah Farris looked with blood gushing from her neck. thought This defendant what he had done on Sunrise Mountain was funny. laughed He about it. laughed He Winfrey. about it with Leonard He was so excited, he was much fun having shooting so that mini-14 assault rifle. This was fun for this defendant. Honor,
MR. SCHIECK Your I’m [defense counsel]: to going object. This is not argument, opening statement. THE COURT: Overruled. horrible, brutal,
And what Heather had seen was it was it was done for no reason.
MR. SCHIECK: Going object, Your Honor. This is argument, Your Honor.
THE COURT: Sustained.
MR. SCHWARTZ [prosecutor]: This defendant killed reason, for the just absolutely no people innocent two hell of it. Honor, object. going I’m again Your
MR. SCHIECK: argument. is This show, will evidence what the it to Keep THE COURT: Mr. Schwartz. selfishness of the end because abrupt lives came to an
Their that individual. and cold-bloodedness this Again, Honor. Your Going object, MR. SCHIECK: be admonished. jury And ask argument. Sustained. THE COURT: killed were innocent people . . . Two MR. SCHWARTZ: killing said that And someone 1994. September on this evidence in evil. The is the ultimate an innocent person defendant September will show that on case *11 evil, once, but twice. not the ultimate committed Your Honor. again, Going object to MR. SCHIECK: statement. improper opening This is argu- gentlemen, Ladies and Sustained. THE COURT: earlier, evidence, you told as I’ve counsel are not ments of to as to—as counsel beliefs of personal neither are the and that evidence. the of implications in “engaged prejudicial, that the prosecutor Greene asserts of guise the the under jury argument passionate improper the infected argument of impact an statement. opening process to due right violated Greene’s entire proceeding fair trial.” a the on overturned lightly is not to be criminal conviction “[A] alone, the state standing comments prosecutor’s
basis of a context; doing can only by so must be viewed in ments or conduct the affected conduct prosecutor’s whether the it be determined 1, 11 470 U.S. Young, v. the trial.” United States fairness of addition, improper that court determine (1985). should this In . . . be “it must by prosecutor, made comments were reason a beyond harmless errors were whether the determined 724, 721, P.2d State, 765 Nev. v. 104 doubt.” Witherow able trial, not a fair 1153, (1988). guarantees The Constitution 1155 927, State, 803 Nev. 106 a trial. Ross necessarily perfect prosecutor’s that the (1990). enough not It is P.2d 1105 U.S. Wainwright, 477 Darden v. are undesirable. remarks Thus, prosecu is whether relevant (1986). inquiry 181 unfairness as with the proceedings so infected tor’s statements Darden, at 477 U.S. of due process. the results a denial make 181.
We conclude that the prosecuting attorney’s did remarks not rise to the level of improper argument that would justify over- turning conviction. The only patently improper statement is the reference to the “selfishness and cold-bloodedness” of Greene. A prosecutor has the duty to refrain from in stating facts opening statement that he cannot at trial. Lord v. prove None of the other statements are manifestly or improper constituted misconduct. As remarks, to the first set of the prosecutor did show that the i.e., reason, murders were committed for no without any appar- remark, ent motive. As to the last did later prosecutor prove murder, evil,” once, Greene committed “the ultimate not but Further, twice. the defense received the benefit of a jury admon- ishment, which, instance, in this any is sufficient to remove Moreover, prejudice. even if this court concluded that the above- misconduct, referenced prosecutorial statements constituted such misconduct was beyond harmless light reasonable doubt in the overwhelming evidence guilt Greene. against Lay, See 1193-94, Nev. at P.2d at 450-51.
However, this court cannot condone the prosecutor’s behavior
during his opening statement. He ignored the district judge’s
repeated admonitions to confine the State’s opening remarks to
what the evidence would show and to refrain from injecting
personal beliefs into his statement. All attorneys making presen-
tations before the courts of law of this state
duty
have a solemn
respect
admonitions issued members of the bench and may be
disciplined
39;
for ignoring such rulings. See SCR
SCR 99. As
state,
representatives of the
prosecutors have a special, height-
duty
ened
of fairness and responsibility,
particularly
capital
*12
cases. See
v.
Emerson
Nev.
(1982)
U.S.,
1215-16
(citing Berger v.
(1935));
295 U.S.
173;
SCR
SCR 250. We issue a stern warning
attorneys
to trial
that improper opening statements and failure to observe the
admonitions of the trial judge will not be tolerated and that this
court will act whenever appropriate to deter such breaches of
conduct. We
$250
fine the prosecutor
for his improper behavior.
39;
99;
102;
See SCR
Court,
SCR
SCR
Young District
Prosecution misconduct during the closing statement of guilt phase Greene contends that the prosecutor committed misconduct trial of Greene’s phase at the guilt statement during closing stating: a you that I showed photographs in these
What is shown away and to drive laugh defendant to caused this ago moment to scene; the defendant is what caused crime this from the and eye man’s poor condition of the about the laugh joke and Defendant found Deborah Farris. the condition of laughing, Farris isn’t family of Deborah funny. The Payton laughing. isn’t family Christopher of — Honor, to Your going object, I’m MR. SCHIECK: Sustained. THE COURT: to victim referred improperly prosecutor that the argues Greene statement. evidence with this impact The evidence. impact victim do not constitute These statements on the the murders the effects of not refer to did prosecutor their losses. are they grieving much families and how victims’ relat- comparison rhetorical Here, is a statement prosecutor’s of value remorse and lack lack of complete Greene’s ing to as argument improper to the level of It does not rise human life. Further, amounted even if the statement Greene contends. misconduct, a reasonable beyond harmless it is prosecutorial P.2d at 11; Lay, 110 Nev. at at Young,470 U.S. doubt. 451. con- 200.033(12) constitutional facially
Whether NRS in case Greene’s applied stitutional as unconstitutionally 200.033(12) is that NRS Greene contends from it cannot be differentiated because ambiguous vague 200.033(2). NRS pertinent part: states in
NRS 200.033 degree the first murder of by which only circumstances are: may aggravated be who aby person committed The murder was 2. felony of a murder or another convicted of previously of the person violence to or threat of the use involving another. has, proceeding, the immediate The defendant
12. in the murder of than one offense of more been convicted subsection, a of this the purposes For degree. or second first a murder of have been convicted shall be deemed person upon or is rendered guilt verdict jury at the time without sitting judges or by judge guilty pronouncement a jury.
172 fact, 2 200.033 subsections
In the difference between NRS 2, any convictions for readily 12 is Under subsection apparent. in can be previous proceedings murders or crimes of violence Ely v. degree Hogan first murder. properly aggravate admitted Prison, 952, 710, 956-57, (1993), State 860 P.2d 714 109 denied, U.S. ......, (1996); Riley Ct. cert. ...... 117 S. 334 217, 205, 551, (1991), 558 cert. denied, (1995). 1431 On the other U.S. 115 S. Ct. hand, degree subsection 12 murder where the aggravates first accused is convicted of more than one in the instant murder Thus, proceeding. we claim that NRS conclude that Greene’s 200.033(12) is is unconstitutional meritless. Further, 200.033(12) we also conclude that NRS constitu- was tional as case. applied this Greene was convicted of the therefore, murders of both Payton Farris and “in the immedi- ate proceeding, been convicted of more than one offense [he has] Thus, of murder in the first or there degree.” second is sufficient evidence to support aggravator.4 The constitutionality the “at random and without apparent
motive”
200.033(9)
aggravator NRS
Greene
200.033(9),
contends that NRS
the “at random and
without apparent
murder,
motive” aggravating factor for
is
unconstitutional. He argues that it
vague
and ambiguous, and
that it violates the Fifth and Eighth Amendments.
200.033(9)
NRS
provides that one of the
circumstances
which a first degree murder may
aggravated
be
is that the “mur-
der was committed
one
upon
or more
at
persons
random and
without apparent motive.” A state
capital
authorizing
punishment
has a constitutional duty to tailor
law
arbitrary
its
to avoid the
capricious infliction of the death penalty. Godfrey v. Georgia,
446 U.S.
(1980).
We have examined the constitutional-
ity of
death penalty statute as a whole:
Nevada’s capital punishment law was amended in
with
inconsequential revision from the death penalty statutes in
Georgia and Florida. Georgia and Florida statutes survived
constitutional scrutiny by the United States Supreme Court
and satisfied the constitutional deficiencies enunciated in
Furman. Gregg
v. Georgia, 428 U.S.
(1976);
196-207
Florida,
Profitt v.
U.S.
251-53
200.033(12)
reasons,
that NRS
also conclude
we
4For
same
Winfrey.
applied to
constitutional as
*14
State,
407,
(1979),
Deutscher v.
P.2d
412
(1991).
vacated on other grounds,
Sufficient
murder was committed at random and without apparent
motive pursuant
200.033(9)
to NRS
Greene contends that there was insufficient evidence for the
jury to find that the killing of Deborah Farris was at random and
without apparent motive in
the
light
Winfrey
jury’s finding that
the same aggravator did not exist for the killing of Christopher
Payton.
State,
In Bollinger v.
111 Nev.
(1995),
court affirmed inconsistent verdicts as valid. In Bollinger, the
jury had found Bollinger guilty of committing two simultaneous
murders, but then determined that the aggravating circumstance
that Bollinger was under sentence of imprisonment at the time he
committed the murders only existed as
one
of the
Id.
murders.
1116-17,
at
held,
Cumulative error requiring a new trial State, Relying upon Sipsas v. 102 Nev. P.2d (1986), Greene asserts that cumulative error requires reversal and remand for a new trial.
Where the accumulation of error is more serious than an
breach,
isolated
it may result in the denial of the constitutional
right to fair trial. Id. at
In cases in which the death penalty is imposed, this court is also statutorily required to consider whether the death sentence was imposed under the influence of passion, prejudice, any or arbitrary factor and whether the sentence of death is excessive both considering the crime and the defendant. 177.055(2). NRS We conclude that the death sentence of Greene was not imposed under the influence of passion, factor, prejudice, any or arbitrary nor was it excessive in this case considering senseless and violent nature of the crime and the defendant. Winfrey’sappeal
Witness Barker as a co-conspirator On appeal, Winfrey contends that Heather Barker was a reject Winfrey’s argument 5We upon on the same issue based the same grounds. co-conspirator. Based upon premise, Winfrey argues that Barker should not have been testify allowed to without the advice of an attorney or a grant immunity. Because of alleged these violations, constitutional Winfrey asserts that testimony Barker’s should have been stricken from the record.
“An one accomplice is who is liable to prosecution for the defendant, identical offense charged against 175.291(2), NRS in, or who is culpably implicated or unlawfully cooperates, aids or abets in the commission of the crime charged.” Orfield v. (1989) (citation omitted). “Moreover, conduct, it is hornbook law ‘that to be criminal, must consist of something (or more than mere action non-action where there act); is a legal duty to some sort of bad ” Id., state of mind required as well.’ 771 P.2d at (quoting Scott, W. LaFave & (1972)). A. Criminal Law 176
Winfrey cites to the following facts to support position his Barker was a (1) co-conspirator: she did not immediately go to police murders; after (2) witnessing she knew that Greene and Winfrey possessed weapons at the time of the offense since the guns had been scene; discharged they before drove to the crime (3) she took temporary possession of the handgun after the (4) victims; shooting; she knew one (5) of the she knew the car stolen; (6) she provided Greene with a rag which he used to clean the weapon after the murder.
After reviewing Barker’s testimony, this court concludes that Winfrey’s contention clearly lacks merit. Despite Winfrey’s col- orful analysis crime, of Barker’s involvement in the none of the aforementioned facts are evidence convincing of her participation in the conspiracy. Our review indicates that Barker was an inno- *16 bystander cent to the whole chain of events. Barker had no idea when she asked for a ride home from Greene Winfrey and that she would be a witness to two murders. The facts that Barker failed to go to the police, took temporary possession of the murders, handgun while seated in the car after the and provided rag to clean the handgun do not make her an accomplice. Barker’s testimony demonstrates that she was frightened by the crimes, told, she did as she was and she kept quiet out of fear. Further, Barker later learned the identity of the two victims and indeed, Payton Farris and were her friends. Our review of the record evinces that Winfrey and Greene came upon Farris and chance, Payton by and Barker is in no way responsible for this Moreover, tragic coincidence. we out that point Barker was never charged with any involvement in the crime.
Further, Winfrey any right challenge has waived Barker’s testimony because he timely objection failed to raise a to or prior specifically her “When an fails to
during testimony. appellant trial, testimony during or elicited but object questions asked them, about in we do not complains retrospect upon appeal, of error.” Wilson v. proper assignment consider his contention a (1970). P.2d Moreover, on is that Winfrey’s argument appeal the thrust of Winfrey were violated. has no rights Barker’s constitutional are standing challenge. rights per- to assert this Constitutional and Broadrick v. Okla- may vicariously. sonal not be asserted homa, Thus, we that 413 U.S. conclude Winfrey’s contention lacks merit. during closing argument
Prosecution misconduct the State’s guilt at the phase
Winfrey contends that the committed misconduct prosecutor the at the of his trial. during closing argument guilt phase State’s Winfrey there were four alleges separate episodes prosecu- however, misconduct; torial brief on is not as appeal explicit his to which he objectionable. statements found
First, contends that the misstated the law Winfrey prosecutor of intent. His follows: “The in complete analysis prosecutor is as robbery. the instant made with this case to a This analogies case felony is not a murder case. Based on the aforementioned state- ment, the prosecutor committed misconduct.” fashion, In a the the quite long-winded prosecutor explained example instructions to the an of when jury giving appropriate murder, an aider or abettor be liable for even when that aider may Although or abettor did not pull trigger prosecu- himself. robbery tor used a as an he did not misstate law of example, reasons, the prosecutor’s intent. For these we conclude that confusing jury they way statements were not to the no asserts, Second, “The Winfrey prosecutor constitute misconduct. in the in evidence. He mentioned argued case at bar facts not Winfrey as an in a which the trial court accomplice burglary ruled only type admissible as to Greene. This is of abuse from the new attorney State’s which warrants a trial.” testimony summarized the of two witnesses prosecutor regarding stealing guns: of the Strickland, testified, they Girlie Lance they
Chris and how burglary talked about the of Mr. Izzard’s house there. And no doubt they weapons stole those counsel *17 to talk about a deal that was made with going defense is prosecuted they weren’t that individuals these two to regard and both Girlie interesting is Now what’s burglary. that for Izzard’s of Mr. burglary in the were involved Strickland with the trailer entered actually trailer, Girlie only but what for accountable But, equally is Strickland Greene. and a he was aider trailer, because that inside went on co-conspirator. he was abettor and in the involved was Winfrey that imply not did prosecutor not in facts therefore, argue not he did guns; stealing of the how an example of Rather, another presenting he was evidence. even a crime accountable fully held may be and abettor aider constituting acts of the any commit personally not he did though not constitute did this statement that conclude the crime. We misconduct. prosecutorial improperly prosecutor that the Third, Winfrey contends of the guilt phase the during evidence impact victim referred to trial: on excitement their got Greene Winfrey and how
This is Leonard what Defendant 1994. This September are photographs These again. do wait to couldn’t Winfrey laugh joke, Winfrey laugh, and Greene what caused and was she killed after looked Farris Deborah about how His head. in the was shot he when looked Payton how Chris They blown off. was eyeball off. His blown head was the in they were while it it, about they joked about laughed was thought Greene Travers and defendant car. This Deborah laughing, isn’t Payton’s family Chris funny. Greene Winfrey and both but laughing; isn’t family Farris’s couple. poor to that they did about what laughing were not constitute do families victims’ the These references evi testimonial undisputed was There evidence. impact victim crime the about laughing were Winfrey and that Greene dence “Dur scene. the crime away from they drove as the victims argu latitude wide enjoys trial counsel argument, closing ing Jain the evidence.” from inferences drawing facts and ing Here, P.2d 450, McFarland, on crime of the effect the comparing simply prosecutor families, victims’ with laughed, who Winfrey, Greene that conclude we Accordingly, laughing. are not presumably who argument of proper scope exceed did not prosecutor nois misconduct. there improper made prosecutor
Fourth, Winfrey contends argument: closing during to punishment reference *18 You heard for the first time during this trial that Defendant Winfrey pled guilty to possession of stolen vehicle. And for some reason that bolsters his credibility before you as he sat there and looked at you and testified. And somehow just because a person pleads guilty, then we are to assume that he is an honorable person he’d plead guilty to everything that he was guilty of. I suggest you that that’s a ruse. But we don’t execute people being possession stolen for of vehicles. The consequences nearly aren’t as severe that he waited year one before he entered this plea. Is it a tactic? Is it a ploy? I suggest to you that credibility his is not bolstered by the fact that he pled guilty to possession of a stolen vehicle.
We point out that the prosecutor made these statements during the State’s rebuttal argument therefore, they were in response to issues raised the defense in its closing argument. The strongest against factor reversal on grounds prosecu- tor made an objectionable remark is that it was provoked by defense counsel. State, Pacheco 414 P.2d (1966). Thus, the reference to Winfrey’s guilty for plea possession of stolen vehicle is not charge misconduct. Further, the prosecutor’s remark that death not a possible is punishment possession for of a stolen vehicle is simply a state- ment of fact and not improper. This court has held that it proper to general discuss theories of penology during closing argument. Jimenez v. 1368 (1990). sum, In we conclude that the prosecutor did engage not in any misconduct during closing argument of the guilt phase of Winfrey’s trial.
Admission victim impact testimony Winfrey contends that the district court erred in allowing Mrs. Hancock, mother, Deborah Farris’s to testify at the penalty phase regarding the impact of Christopher Payton’s murder on his family. After describing the her impact daughter Deborah’s death has on
had her her family, Hancock stated:
I’d kind like to talk a little bit about Christopher. And his mother had written letter a and I’ve it reviewed a bit. She experiences the same aspects of not being able to find ambi- tion or any joy in life. To see a cries; funeral go by, she see children playing, she gets lost. Christopher lost She— her—his year sister a almost ago from the date that he was child, has but she now one has she lost only So not killed. anymore. family two; children in that and there are no lost no mother, has grandma Christopher’s so only was the She they’re gone. all anymore, grandchildren statement, not defense did impact Hancock’s victim During Later, motion to strike made a the defense any objection. raise a a mistrial or alternative motioned testimony and in the her relevant photo- and the the statement hearing after penalty new coun- evidence. Defense admitted into had been properly graphs objection, contemporaneous that it did not raise sel stated just jump up I couldn’t a situation where “it was because denied the district court at the time.” The the objection make *19 motion. as to decision jury’s relevant to the evidence is impact Victim v. Homick imposed. should be the death penalty or not
whether 600, 127, 136, (1991), petition State, P.2d 606 825 108 Nev. for Here, 3, 96-5714). 1996) (No. Hancock (U.S. July, filed, cert. regarding written mother Payton’s had Christopher read the letter during to it family and referred murder on that the of his impact of Hancock’s that admission We conclude testimony. own her family on his Payton’s of murder impact the testimony regarding 606; also P.2d at see Id. at 825 not constitute error. does Tennessee, (1991). U.S. 808 v. Payne 501 argument closing during the State’s Prosecution misconduct Winfrey’s trial phase penalty at the of referred prosecutor improperly Winfrey contends that death penalty to assert that Winfrey’s dangerousness” “future crimes at issue. for the punishment an appropriate is future may argue prosecutor held that the This court has no evidence of when is a even there of defendant dangerousness State, v. Redmen question. the murder in of independent violence on other (1992), overruled 400 P.2d P.2d 714 by, Alford grounds the future However, predict evidence purporting “psychiatric therefore, and, highly is unreliable of a defendant dangerousness Id. at hearings.” sentencing at death penalty inadmissible that to argue prosecutor error for the at 400. It was P.2d seeker, thrill Winfrey as a Dr. Kinsora characterized because breaking prison. out by threat future Winfrey pose would a receive did not Nevertheless, Winfrey of the fact light murders, without the but life sentences sentences death harmless error was possibility of we conclude that this parole, beyond a reasonable doubt.
Accordingly, Winfrey the conviction and sentence of appellant are also affirmed. Young
Steffen, J., Rose, JJ., C. concur. Springer, J., concurring:
I concur in the result reached in the but I majority opinion, with the disagree majority’s sanction of Mr. Schwartz in the measly $250.00. sum of
First, I want say clearly that it was incumbent the trial upon judge to Mr. put stop to Schwartz’ refusal to contemptuous abide by the court’s relative rulings impermissible to his rhetori- cal argument during opening his statement. Had the trial judge declared a mistrial and sanctioned Mr. Schwartz at the time of his misconduct this court having would not be faced with to decide whether clearly guilty murderer is entitled to a new trial reason of the most blatant I prosecutorial misconduct that have seen in a long time. Given the unfortunate that Mr. place in, Schwartz placed $250.00 has this court assessment $2,500.00 it, I laughable. think is more like or even perhaps more. COHEN, Appellant,
ROBERT v. THE STATE OF NEVADA; COMMISSION; NEVADA GAMING *20 Respond- BOARD, the STATE GAMING CONTROL ents.
No. 26905
January